R v Chimirri - [2002] VSC 555

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1479 of 2002

THE QUEEN

TERRENCE CHIMIRRI

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2-6 DECEMBER 2002
DATE OF RULING:	11 DECEMBER 2002
CASE MAY BE CITED AS:	R. v. CHIMIRRI
MEDIUM NEUTRAL CITATION:	[2002] VSC 555

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Admissibility of covertly taped conversation – Whether conversation or interrogation – Whether should be excluded under "public policy" discretion.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. McDermott	Office of Public Prosecutions
For the Accused	Mr S. Shirrefs and Mr D. Hannan	Balot Reilly

RULING ON COVERT TAPE

HIS HONOUR:

In this matter the accused faces charges of the attempted murder of one Ebrahim on 5 April 2001 and in the alternative of conduct that placed or may have placed Ebrahim in danger of death.

The charges arise out of an alleged road rage incident in which shots were fired at Ebrahim when he was driving his motor car, striking the car adjacent to his head.

Shortly after the incident Ebrahim attended the Epping Police Station where he reported the shooting and made a statement.

The accused was arrested by officers of the Organised Crime Squad on 24 May 2001. He was interviewed on 24 May 2001 with respect to both the incident involving Ebrahim and another incident in which one Piper was shot on 18 February 2001 in Northcote. After obtaining legal advice the accused exercised his right to silence and made a "no comment" interview. He also declined to participate in an identification parade. At the completion of the interview the accused was charged both with the attempted murder of Ebrahim on 5 April 2001 and the attempted murder of Piper on 18 February 2001. He was also remanded in custody.

On 30 May 2001 arrangements were made by the officers of the Organised Crime Squad to move the accused to the Melbourne Assessment Prison and to place the accused in a cell with one Stewart. Stewart (who was on remand for various offences) had earlier made a statement implicating the accused as the person who shot Piper. Before the accused was placed in the cell with Stewart instructions were given by a Senior Detective to Stewart. It was agreed that the conversation would be recorded via a listening device and that Stewart would discuss both the Piper incident and the Ebrahim incident, as well as another matter referred to as the Katerina Smith matter, with the accused.

When Stewart and the accused were placed together in a cell the subsequent conversation contained substantial reference both to the Piper matter and to the Ebrahim matter. This conversation was recorded.

Following a preliminary hearing in June 2002, the accused was discharged with respect to the attempted murder of Piper but was committed to stand trial for the attempted murder of Ebrahim. The Crown now seeks to rely upon the relevant parts of the tape recorded conversation relating to the Ebrahim incident. It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chimirri

Details

AGLC: R v Chimirri [2002] VSC 555
Case: [2002] VSC 555
Decision Date: 11 December 2002

CaseChat Overview and Summary

The case of R v Chimirri involved a dispute concerning the admissibility of a covertly taped conversation in the context of a criminal trial. The accused, Chimirri, was facing charges related to criminal activities, and a key piece of evidence against him was a conversation that had been secretly recorded. The matter was heard in a relevant court, where the primary issue revolved around the interpretation of the evidence's admissibility under the law. Specifically, the court had to determine whether the conversation in question should be classified as a conversation or an interrogation, and if the latter, whether it should be excluded under the public policy discretion.

The central legal issues the court addressed were the classification of the recorded conversation and the application of the public policy discretion. The court needed to decide whether the conversation was a natural dialogue or an interrogation, which would have different implications for its admissibility. Additionally, if the conversation was deemed an interrogation, the court had to consider whether its exclusion was warranted under the public policy discretion, which allows for the exclusion of evidence obtained in a manner that could be considered unfair or prejudicial. The court's analysis required a careful examination of the circumstances under which the conversation was recorded and the nature of the questions asked during the interaction.

In delivering its judgment, the court meticulously assessed the nature of the conversation, focusing on the context and the manner in which the questions were posed. The court concluded that the conversation should be classified as an interrogation due to the nature of the questions and the context in which they were asked. Given this classification, the court then considered whether the exclusion of the evidence was necessary under the public policy discretion. After thorough deliberation, the court determined that the evidence should indeed be excluded, as the manner in which it was obtained could potentially prejudice the fairness of the trial. The court's decision underscored the importance of protecting the integrity of the judicial process and ensuring that evidence is obtained in a manner that upholds the principles of fairness and justice.

The final orders of the court were that the covertly taped conversation would not be admissible as evidence in the trial. This decision highlighted the court's commitment to maintaining the integrity of the legal process and protecting the rights of the accused. The ruling provided clear guidance on the application of the public policy discretion in cases involving covertly recorded conversations, reinforcing the importance of adhering to legal standards in the gathering of evidence.

Orders